Confronting Capital Punishment in Asia : Human Rights, Politics and Public Opinion

Capital punishment has for many years now been the subject of controversy and moral debate. With the strengthening focus worldwide on human rights there has been a movement to abolish this form of punishment or in the least, uphold the minimum international law standards aimed at protecting the rights of those facing capital punishment. This book identifies Asia as being particularly unaffected by these international pressures. The essays contained in this volume provide an analysis of changes in the scope and application of the death penalty in Asian countries, and explain in what ways they fail to meet these international law standards. Cover 1 Confronting Capital Punishment in Asia 4 Copyright 5 Acknowledgments 6 Contents 8 Contributors 13 Introduction 16 I. SITUATING ASIA IN AN INTERNATIONAL HUMAN RIGHTS CONTEXT 26 1. State Execution: Is Asia Different and Why? 28 1. Patterns of Death Penalty Policy in Asia 28 2. Explaining Asian Differences 31 Public opinion 34 Single nation parochialism 36 3. Two Modest Proposals 37 2. The Impact and Importance of International Human Rights Standards: Asia in World Perspective 38 1. Introduction 38 2. Does International Law Prohibit the Death Penalty? 39 3. The Development of International Norms and the Worldwide Trend Towards Abolition of the Death Penalty—A Dynamic Relationship 40 4. The Applicable International Human Rights Standards 44 Transparency and the need for data 44 The scope of the death penalty 45 Minimum fair trial guarantees 47 5. The Impact of International Human Rights Obligations on the Domestic Law—The Role of the Judiciary in Harmonizing Standards 52 The mandatory death penalty 53 Pardons and petitions of mercy 57 6. Concluding Remarks 60 3. Examining China’s Responses to the Global Campaign Against the Death Penalty 61 1. Introduction 61 2. Chinese Discourse and Practices on the Death Penalty: Changes and Resistance 62 An overview of attitudinal, normative, and institutional transformations regarding capital punishment in China 63 Resistance to justifications for, and setbacks to, the capital punishment reforms in China 67 3. Evaluating the Impact of International Pressures on Chinese Capital Punishment Practices: Case Studies and Empirical Evidence 70 Banning the ritual of pre-execution shaming parades 70 The failed political intervention to save Akmal Shaikh from execution 74 Varying degrees of distrust among Chinese legal elites towards international human rights forces 79 4. Conclusion 81 4. The Role of National Human Rights Institutions in Abolishing Capital Punishment: A Critical Evaluation 83 1. Introduction 83 2. Role, Relevance, and Significance of NHRIs 84 3. Positive Developments 86 4. Areas of Concern and the Scope for Greater Engagement 87 India 87 Maldives 91 Thailand 94 Afghanistan 95 Bangladesh 98 Indonesia 100 Malaysia 101 Sri Lanka 102 5. Conclusion 103 5. The Role of Abolitionist Nations in Stopping the Use of the Death Penalty in Asia: The Case of Australia 105 1. Introduction 105 2. Australia’s Relationship with Asia 107 3. Australian Internal Laws and Policies and its International Stance on the Death Penalty 108 4. Australian Formal Laws and Policies in Relation to Cooperation with Asian Retentionist Nations in Criminal Matters 111 5. Informal Australian Policies: Australian-Asian Agency to Agency Cooperation when the Asian Agency is Located in a State that Maintains the Death Penalty 114 6. Conclusion 118 II. THE PROGRESS SO FAR 120 6. Recent Reforms and Prospects in China 122 1. Introduction 122 2. Cautious Application of the Death Penalty by the Courts 123 3. Reducing Use of the Death Penalty Through Legislation 126 4. Further Reduced Use of the Death Penalty 129 5. Specific Systems for Reforming the Death Penalty 130 Prosecutorial supervision in reviewing capital sentences 130 Making the method of execution uniform 131 Separating the decision makers 132 Establishing a special amnesty and clemency system 133 6. Conclusion 137 7. Abolition of the Death Penalty in India: Legal, Constitutional, and Human Rights Dimensions 138 1. Introduction 138 2. Capital Punishment and the Constitution of India 140 3. The Dissenting Judgment of Justice Bhagwati in Bachan Singh 142 4. The Shifting Sands of the ‘Rarest of Rare’ Doctrine 143 5. Constitutional Validity of the ‘Rarest of Rare’ Doctrine 145 6. Judicial Process and Arbitrariness of the Supreme Court: Some Recent Trends 146 7. Situating Joseph Raz in the Death Penalty Debate 148 8. Abolition of Death Penalty in India: Contemporary Challenges 150 9. Emotions and Criminal Sentencing: An Analysis of Kasab’s Case 152 10. By Way of Conclusion 155 8. Singapore’s Death Penalty: The Beginning of the End? 156 1. After Amnesty 156 2. The Condemned, His Counsel, and the Court of Appeal 157 The power to re-open completed proceedings 158 The constitutionality of the mandatory death penalty 160 The reviewability of pardons 165 3. An Author, Contempt of Court, and Death Penalty Advocacy 169 4. Explaining the Numbers 174 5. The Beginning of the End? 178 9. Progress and Problems in Japanese Capital Punishment 183 1. Japanese Exceptionalism in Historical Perspective 183 2. Recent Reforms 185 3. Cautious About Capital Punishment? 187 4. The Dirty Dozen 190 5. Two Ways Law Can Fail 195 6. Japanese Futures 198 III. PUBLIC OPINION AND DEATH PENALTY REFORM 200 10. Capital Punishment Reform, Public Opinion, and Penal Elitism in the People’s Republic of China 202 1. Current Legal Reforms and Chinese Death Penalty Practices 202 2. The False Explanation of the Chinese ‘Culture of Death Penalty’ 207 3. Public Opinion and the Death Penalty in China 210 4. Public Opinion, Evidence Procedures, and the Emerging ‘Innocence Frame’ 212 5. From ‘Penal Populism’ to ‘Penal Elitism’ 215 11. Challenging the Japanese Government’s Approach to the Death Penalty 220 1. Introduction 220 2. An Endless Dialogue: ‘It’s Human Rights’, ‘No, It’s Public Opinion’ 220 3. Taking a Closer Look at the Japanese Government’s Approach 222 4. The Source of Majority Public Support: The Japanese Government Survey 224 5. Questioning the Importance of the Death Penalty for the Japanese Public: Methodology and Findings 226 6. Conclusion 231 Appendix: Government Survey Results 232 IV. THE POLITICS OF CAPITAL PUNISHMENT IN PRACTICE 234 12. Suspending Death in Chinese Capital Cases: The Road to Reform 236 1. Introduction 236 2. The Three Supreme Criminal Justice Policies in China 238 3. The Two SPCs 241 4. Three Post-2007 Key Developments 244 2007 and the ‘cash for clemency’ controversy 245 Party and the SPC endorsement of balancing leniency and severity 246 The ‘stability maintenance’ craze of 2010–11 247 2011 and beyond 248 5. Conclusion 251 13. Death Penalty in the ‘Rarest of Rare’ Cases: A Critique of Judicial Choice-making 253 1. Introduction 253 2. From ‘Special Reasons’ to the ‘Rarest of Rare’ Cases 256 3. Judicial Choice-making: A Critique 260 Contentious reasons for imposing the death penalty 262 Dictating to the lower courts 263 Lack of adequate reasoning and/or analysis 263 Inconsistency and personal subjectivity vis-a-vis the Bachan Singh guidelines 264 Gender insensitivity 267 Inconsistency in resolving contentious social issues 269 Possibility of reform 270 4. Conclusion 271 Appendix: The List of Reviewed Decisions Delivered by the Indian Supreme Court between 1 January 2010 and 10 October 2011 272 14. Don’t be Cruel... : The ‘Death Row Phenomenon’ and India’s ‘Delay’ Jurisprudence 302 1. Introduction 302 2. The Death Row Phenomenon 303 A review of jurisprudence 304 Jurisprudence of the United Nations Human Rights Committee 306 3. Death Row and ‘Delay’ Jurisprudence in India 312 Early development of the ‘delay’ factor 313 Triveniben and the constitutional position 316 Solitary confinement and conditions of detention 318 ‘Capital gridlock’ and the current context 319 4. Conclusion—A March to the Gallows? 324 Index 328 With The Strengthening Focus Worldwide On Human Rights, There Has Been A Rapid Increase In Recent Years In The Number Of Countries That Have Completely Abolished The Death Penalty. This Is In Recognition That It Is A Violation Of The Right To Life And The Right To Be Free From Cruel, Inhuman And Degrading Punishment. There Has, Simultaneously, Been Pressure On Countries That Still Retain Capital Punishment To Ensure That They At Least Apply The United Nations Minimum Human Rights Safeguards Established To Protect The Rights Of Those Facing The Death Penalty. This Book Shows That The Majority Of Asian Countries Have Been Particularly Resistant To The Abolitionist Movement And Tardy In Accepting Their Responsibility To Uphold The Safeguards. The Essays Contained In This Volume Provide An In-depth Analysis Of Changes In The Scope And Application Of The Death Penalty In Asia With A Focus On China, India, Japan, And Singapore.they Explain The Extent To Which These Nations Still Fail To Accept Capital Punishment As A Human Rights Issue, Identify Impediments To Reform, And Explore The Prospects That Asian Countries Will Eventually Embrace The Goal Of Worldwide Abolition Of Capital Punishment--unedited Summary From Book Jacket. State Execution : Is Asia Different And Why? / Franklin E. Zimring -- The Impact And Importance Of International Human Rights Standards : Asia In World Perspective / Saul Lehrfreund -- Examining China's Responses To The Global Campaign Against The Death Penalty / Michelle Miao -- The Role Of National Human Rights Institutions In Abolishing Capital Punishment : A Critical Evaluation / Y.s.r. Murthy -- The Role Of Abolitionist Nations In Stopping The Use Of The Death Penalty In Asia : The Case Of Australia / Sam Garkawe -- Recent Reforms And Prospects In China / Liu Renwen -- Abolition Of The Death Penalty In India : Legal, Constitutional, And Human Rights Dimensions / Amit Bindal And C. Raj Kumar -- Singapore's Death Penalty : The Beginning Of The End? / Michael Hor -- Progress And Problems In Japanese Capital Punishment / David T. Johnson -- Capital Punishment Reform, Public Opinion, And Penal Elitism In The People's Republic Of China / Børge Bakken -- Challenging The Japanese Government's Approach To The Death Penalty / Mai Sato -- Suspending Death In Chinese Capital Cases : The Road To Reform / Susan Trevaskes -- Death Penalty In The Rarest Of Rare Cases : A Critique Of Judicial Choice-making / Surya Deva -- Don't Be Cruel : The Death Row Phenomenon And India's Delay Jurisprudence / Bikramjeet Batra. Edited By Roger Hood And Surya Deva. Includes Bibliographical References And Index. "With the strengthening focus worldwide on human rights, there has been a rapid increase in recent years in the number of countries that have completely abolished the death penalty. This is in recognition that it is a violation of the right to life and the right to be free from cruel, inhuman and degrading punishment. There has, simultaneously, been pressure on countries that still retain capital punishment to ensure that they at least apply the United Nations minimum human rights safeguards established to protect the rights of those facing the death penalty. This book shows that the majority of Asian countries have been particularly resistant to the abolitionist movement and tardy in accepting their responsibility to uphold the safeguards. The essays contained in this volume provide an in-depth analysis of changes in the scope and application of the death penalty in Asia with a focus on China, India, Japan, and Singapore. They explain the extent to which these nations still fail to accept capital punishment as a human rights issue, identify impediments to reform, and explore the prospects that Asian countries will eventually embrace the goal of worldwide abolition of capital punishment"--Unedited summary from book jacket.